This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-98-410

In re: Estate of Dorothie M. Hoffmann,

Deceased,

and

In re: the Trust of Dorothie M. Hoffman

under Agreement dated December 31, 1990.

Filed September 15, 1998

Affirmed

Davies, Judge

Hennepin County District Court

File No. P1941515

Harry T. Neimeyer, Stringer & Rohleder, Ltd., 1200 Norwest Center, 55 East Fifth St., St. Paul, MN 55101 (for appellant American Cancer Society)

Martin H. Fisk, Briggs & Morgan, P.A., W-2200 First National Bank Bldg., 332 Minnesota St., St. Paul, MN 55101 (for appellant American Cancer Society)

William J. Berens, Carol A. Peterson, Sonny Miller, Dorsey & Whitney, L.L.P., 220 South Sixth St., Minneapolis, MN 55402-1498 (for respondent Animal Humane Society of Hennepin County)

Considered and decided by Davies, Presiding Judge, Amundson, Judge, and Thoreen, Judge.*

U N P U B L I S H E D O P I N I O N

DAVIES, Judge

Appellant American Cancer Society, a beneficiary under decedent's 1975 will, challenges the dismissal of its petition to vacate the order probating decedent's 1990 will. Although the limitations period for their action has expired, appellant alleges that fraud committed on the district court makes its petition timely. The record supports the district court's finding that there is no evidence showing fraud. We affirm.

D E C I S I O N

I.

A petition to vacate the probating of a will must be brought within the earlier of three years after the decedent's death or one year after the probate order sought to be vacated. Minn. Stat. §§ 524.3-108, 524.3-412 (3)(iii) (1996). Here, the one-year limitations period ran out on December 27, 1995, and the three-year limitations period ran out on June 13, 1997. Appellant's petition to vacate was not brought until September 24, 1997, and is clearly barred by both limitations.

II.

Appellant alleges fraud was perpetrated on the district court that probated the 1990 will. Even if the limitations periods have expired, a petition to vacate a probate order may be brought within two years of the discovery of fraud on the court. Minn. Stat. §§ 524.3-413, 525.02 (c) (1996). Fraud on the court "occurs when a party intentionally misleads or deceives" a court on a material fact. In re Conservatorship of Bromley, 359 N.W.2d 723, 724 (Minn. App. 1984), review denied (Minn. Mar. 21, 1985). The district court rejected appellant's petition to vacate, specifically finding that respondent Animal Humane Society of Hennepin County "did not perpetrate a fraud upon the court."

A district court's "findings concerning fraud on the court must be upheld unless clearly erroneous." Mahoney v. Mahoney, 474 N.W.2d 232, 234 (Minn. App. 1991), review denied (Minn. Nov. 13, 1991). The evidence supports the district court's finding that respondent did not conceal, mislead, or deceive the court as to the existence of the 1975 will under which appellant was a beneficiary.

Appellant contends that, although it was not a devisee under either the 1990 will or a 1990 trust and no one was required by Minn. Stat. § 524.3-403 (1996) to notify it of proceedings concerning the 1990 will, failure to give it notice evidences respondent's fraud on the court. However, since no notice was required, absence of notice does not present a prima facie case of fraud on the court.

We agree with the district court that appellant has made no showing of fraud on the court. The applicable limitation periods have expired, and the district court correctly denied appellant's petition.

Affirmed.

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.